In "the heart of death penalty country," as my friend Jeanne Bishop so aptly puts in her book, we represent people the State is seeking to execute. Since the U.S. Supreme Court reinstated the death penalty in 1976, 82% of all executions have taken place in the Southern "Bible Belt" (37% in Texas alone).
We pour our lives into representing our clients, especially in capital cases where the State is seeking the death penalty. Our defense teams are made up of dedicated investigators, a mitigation specialist, experts, and multiple attorneys, all whom spend months, and even sometimes years developing and preparing these cases for trial. We spend hours sitting in jail with our clients trying to understand them, and trying to develop a relationship of trust. We do everything we can possibly think of to prepare and to try to humanize our clients to jurors. We explain to jurors, (if the client has been convicted) that although the client may be someone who deserves punishment, that punishment should not be death.
We beg for mercy.
But in the death (Bible) belt we are faced with a majority that supports a death sentence for a convicted murderer, and that is before we even start our case. The potential jurors who do not support the death penalty--well, those people (for the most part) do not qualify to sit on the jury at all...
An October 2014 Gallup poll said 63 percent of Americans supported the death penalty. However, in Texas, voters' overwhelming support for the death penalty remains even more intact, with 73 percent either somewhat or strongly in support of the death penalty.
In death penalty trials we do what is called "individual jury selection." Individual jury selection means we talk to ONE potential juror at a time--sometimes for hours--about their views on the death penalty. This process often takes weeks, sometimes months. In order to qualify to serve on a Texas death penalty jury, the potential juror has to at least be able to "consider" giving the accused person the death penalty. That is, of course, only if the person is convicted of what they have been indicted for by the State. Some death penalty lawyers call this a "death qualified jury." Basically, a Texas death penalty jury is made up of 12 individuals who support the death penalty--12 individuals who are willing to give a death sentence to a person under certain circumstances.
I've now spent months of my life questioning hundreds and hundreds of potential jurors in the 2 ½ death penalty trials I've been involved in (2 ½ because one of our cases ended up pleading a portion of the way through the trial). In all three of those death penalty jury selections we had potential jurors fill out 20-plus page questionnaires. The questionnaires requested information about the potential jurors' basic background, religious beliefs, political beliefs, and most importantly their views on the death penalty. While I cannot give you exact statistics from my own experiences, I can tell you that the majority of people we spoke to who identified themselves as "Christians," were also the exact people we often did not want to sit on the jury in these death penalty trials.
I cannot say that these experiences surprised me, but the overwhelming support for the death penalty I've witnessed first hand among my Christian brothers and sisters continues to cause me deep sadness. It deeply impacts the lives of my clients and their families. Moreover, it puts forth a continuing narrative of vengeful violence in a world that has more than enough of it.
In the words of my former law professor Mark Osler, "There is something deeply ironic about the enthusiasm many Christians have for the death penalty...The central narrative of Christianity, after all, is about an unjust execution, and Christianity proudly wears the execution devices as a symbol of their faith."
So why does the death penalty still have such strong support among many of the same group of people who post #standforlife and label their profile pictures with "LIFE?" Do they really mean they stand for life, or just birth?
Polling by the Public Religion Research Institute in 2014 found that white evangelical protestants remain the most likely religious demographic to support the death penalty over life in prison for murderers.
I do not fully understand the why...but I can answer the question of why not. And to me, personally, it is quite simple.
Would Jesus Christ oppose the death penalty if he were present today?
This question might seem like a personal matter, something that should not enter into the death penalty discussion from a legal perspective, but this question matters when you practice in the death (Bible) belt. This question matters because we are talking about life and death, which is often intertwined with our faith and belief in God.
According to a recent Barna poll, most Americans think Jesus would oppose the death penalty. Only five percent of Americans believe Jesus would support the government's ability to execute the worst criminals. This includes 2 percent of Catholics, 8 percent of Protestants, and 10 percent of all practicing Christians. Christian leaders, including the U.S. Conference of Catholic Bishops, have also been some of the most outspoken opponents of executions. But overall, a majority of Americans, especially those who identify as Christians, back the death penalty.
Professor Osler grounds his opposition to the death penalty in the biblical narrative of John 8, "where Jesus stops a legal execution not by questioning the charge or the punishment, but the moral authority of the executioners.
In John 8 when the woman accused of adultery was brought to Jesus, he told the accusers who wanted to stone her to death--to execute her, "Let he who is without sin cast the first stone." The woman's accusers retreated upon Jesus' urging, and Jesus forgave the woman.
Bryan Stevenson explains in his book Just Mercy that "today, our self-righteousness, our fear, and our anger have caused even the Christians to hurl stones at people who fall down, even when we know we should forgive or show compassion. I told the congregation that we can't simply watch that happen. I told them we have to be stonecatchers." Stevenson, Bryan. Just Mercy. (New York: Random House, 2014), p. 309.
We can also point to the Biblical narrative in the Sermon on the Mount in which Jesus gave a direct rejection of the 'eye for an eye' argument.
Finally, as Osler says, "when Jesus teaches that if we visit those in prison, we visit him, he is expressly equating himself to those we wish to execute."
I cannot believe that the same Jesus who taught us not to return hate for hate and evil for evil, the same Jesus who uttered hanging on a cross, "Father, forgive them," would support executions. I do not believe that Jesus would pull the switch, even for what some of the people I talk to in jury selection would label as the people most deserving of death, or "the worst of the worst."
Jason Thornburgh, pastor of Emerson Avenue Baptist Church in Indianapolis stated, "I believe the message of Christ is a message of redemption and reconciliation as opposed to revenge. The ethos of Christ is love, and Christ saw everyone as worthy of redemption."
Sister Helen Prejean, the author of the book Dead Man Walking, (this book inspired the movie by the same title) said, "Jesus Christ, whose way of life I try to follow, refused to meet hate with hate and violence with violence. I pray for the strength to be like Him. I cannot believe in a God who metes out hurt for hurt, pain for pain, torture for torture. Nor do I believe that God invests human representatives with such power to torture and kill." Prejean, Sister Helean. Dead Man Walking. (New York: Random House, 1993), p. 21.
2. Mistakes & Actual Innocence
Sister Helen Prejean also said in her book, "I cannot accept that any group of human beings is trustworthy enough to mete out so ultimate and irreversible a punishment as death. Prejean, Sister Helean. Dead Man Walking. (New York: Random House, 1993), p. 123.
At least 4.1% of all defendants sentenced to death in the US in the modern era are innocent, according to the first major study to attempt to calculate how often states get it wrong in their wielding of the ultimate punishment.
3. Extreme Racial Disparities
Injustice and extreme racial disparities in the application of the death penalty are rampant.
Another one of the MAIN reasons why we should NOT support death is that the death penalty has undeniably been infected with racism. In Houston, prosecutors are three times more likely to seek the death penalty for African American defendants over white suspects, according to a study by the University of Maryland which looked at 500 cases in Harris County. Although African Americans are fewer than 12 % of the population in Texas, they make up more than 37% of the State's 500 plus executions since the law was reinstated.
According to the Texas Department of Criminal Justice webpage, 71.5 % of the people on death row in Texas are not white. This is a problem. This is injustice.
4. The Poor, the Powerless, the Marginalized
Most of the inmates sent to death row were and are what the law calls "indigent." In other words, they were too poor to hire an attorney to defend them. I know from personal experience that the penalty of death is disproportionately applied to the poor, the powerless, and the marginalized. I have been in involved in representing a number of individuals accused of capital murder, and all but one of those clients were court-appointed because they could not afford to hire an attorney.
It is no secret that America's jails and prisons have become warehouses for those struggling with mental illness. Over 50 percent of prison and jail inmates in the United States have a diagnosed mental illness, a rate nearly five times greater than that of the general adult population. Doris J. James and Lauren E. Glaze, "Mental Health Problems of Prison and Jail Inmates," Special Report, Bureau of Justice Statistics (September 2006). Death row is no exception to this problem. I have often investigated and presented overwhelming evidence of my clients' intellectual disabilities or mental illness in a case where the State is seeking the death penalty.
Since 1983, over 60 people with mental illness or retardation have been executed in the United States. There are significant gaps in the legal protection accorded severely mentally ill defendants charged with or convicted of a capital crime. Most notably, this country still permits the execution of the severely mentally ill. The problem is not a small one. A leading mental health group, Mental Health America, estimates that five to ten percent of all death row inmates suffer from a severe mental illness.. Mental Health America, Death Penalty and People with Mental Illness (available at www.mentalhealthamerica.net/go/position-statement/54) (formerly known as National Mental Health Association).
In reflecting on a client with disabilities facing the death penalty, attorney Bryan Stevenson writes in his book Just Mercy, "I thought about all of his struggles and all of the terrible things he'd gone through and how his disabilities had broken him. There was no excuse for him to have shot someone, but it didn't make sense to kill him. I began to get angry about it. Why do we want to kill all the broken people?" Stevenson, Bryan. Just Mercy. (New York: Random House, 2014), p. 288.
One of the issues I could never quite deal with when thinking about and talking about the death penalty with people who support it involves the victims. I have not suffered this type of horrendous loss. I cannot even begin to understand their pain or imagine how I might respond to it.
One of my heroes in this world and a woman who has become a friend and mentor of mine, Jeanne Bishop, wrote an incredible book called Change of Heart: Justice, Mercy, and Making Peace with My Sister's Killer.
In her book Jeanne writes, "the last thing I wanted was to widen the pool of bloodshed, dig another grave, create another grieving family. That wouldn't honor Nancy, who lived life. It wouldn't bring her back or assuage my grief. It would only cause another family to suffer as mine had. I wanted to prevent that, to draw a line that said this: the violence stops here, with me." Bishop, Jeanne. Change of Heart: Justice, Mercy, and Making Peace with My Sister's Killer. (Louisville, Kentucky: Westminster John Knox Press, 2015), p. 41.
Jeanne also explained in her book that "a myth we families of murder victims often hear is this: that harsh sentencing of the perpetrator will bring 'closure' for our grief."
In describing Sister Helen Prejean's experience in gathering with victims' families in Oklahoma City after the 1995 bombing, Jeanne quotes Sister Helen Prejean, who recounted a man raising his hand in the meeting to say, "we lost our daughter. Could we just not use that word 'closure' anymore? There will never be a night I don't miss her. You close on a house, or close the chapter of a book. You never close on a life." Bishop, Jeanne. Change of Heart: Justice, Mercy, and Making Peace with My Sister's Killer. (Louisville, Kentucky: Westminster John Knox Press, 2015), p. 42.
While I am the advocate of my client in trial, being on their side does not mean I am indifferent to the suffering of the victims on the other side of these tragedies. I must stand on the side of my client--I am sometimes one of the only people standing with them--but my heart also goes out to the victim(s), and I often feel a deep sadness for victims who have suffered this type of horrific loss.
I've never felt that I had the place to say, "the death penalty does not really help or heal victims." And I still don't have a place to say that, but in the words of Jeanne Bishop, the family member of a murder victim, "I longed not to have Nancy's life closed, but to have it open--for Nancy's name to be remembered, and to have it propel me and the world toward something good and true and real."
In the Book "Don't Kill in Our Names: Families of Murder Victims Speak Out Against the Death Penalty" the introduction states, "Our universal conclusion that all of the members of Murder Victims' Families for Reconciliation (MVFR) have reached is that the death penalty did not help (us) heal. In fact, it actually impedes healing." King, Rachel. Families of Murder Victims Speak Out Against the Death Penalty. (New Brunswick, New Jersey: Rutgers University Press, 2003), p. 2.
In Texas, a death penalty case costs an average of $2.3 million, about three times the cost of imprisoning someone in a single cell at the highest security level for 40 years. (Dallas Morning News, March 8, 1992).
Simple fact, people do not like to believe this one, but it costs far less to put someone in prison for the rest of their life than it does to seek the death penalty and eventually execute the person.
A Call to Action
In the words of the Sister Helen Prejean, "if we believe that murder is wrong and not admissible in our society, then it has to be wrong for everyone, not just individuals but governments as well. And I end by challenging people to ask themselves whether we can continue to allow the government, subject as it is to every imaginable form of inefficiency and corruption, to have such power to kill. This is not a marginal issue, it involves all of us. We're all complicit."
I love the question reframed by Bryan Stevenson, "the death penalty is not about whether people deserve to die for the crimes they commit. The real question of capital punishment in this country is, Do we deserve to kill?"